11/10/2018

Following up on Mike Ramsey’s informative blog post questioning the constitutionality of the Attorney General, I’ll comment a little bit. The ostensible power to enact the FVRA is supported not just by the powers of Congress but also by the rulemaking power of the Senate. The Senate is effectively telling POTUS: “We’re really busy right now, but go ahead and appoint anyone you want for a limited time, just like we allowed George Washington to do, while we all go through the nomination process.” This has been happening for centuries. Congress imposed a six-month time limit on such appointments in 1795, three years after the original 1792 Vacancies Act.

Let’s assume that the Recess Appointments Clause is not directly applicable here, because of the brief “pro forma” sessions of the Senate. Still, the Recess Appointments Clause is indirectly very relevant. That clause could have easily required that a recess-appointed department head be a present or former Senate-confirmed officer (but did not), and that clause also could have easily been phrased as an exception to the preceding sentence of the Constitution (but was not). So, respectively, I doubt that there is an unwritten constitutional requirement for particularized Senate confirmation for temporarily filling cabinet-level vacancies, and I likewise doubt that recess appointments without particularized Senate consent would have been flatly forbidden if the Recess Appointment Clause had been omitted. Of course, the House and Senate can require particularized Senate confirmation every time vacancies are temporarily filled outside of a recess, but they have not done so.

As a practical matter, it would be shortsighted to judge the FVRA by who the current president is, though I’m not suggesting that many scholars are now doing that. Striking down all or part of the FVRA could cause especially dramatic consequences at the beginning of a future presidency, when the need to fill vacancies is very great. For all these reasons, I’m glad that the judicial power does not include voiding statutes for unclear constitutional reasons.

MICHAEL RAMSEY ADDS: My prior post only considered the matter from an originalist perspective. The argument from practice seems strongly to favor the President, based on federal statutes since 1792 giving the President power to name persons to acting offices without requiring prior Senate confirmation. Those who accept Justice Frankfurter's "historical gloss" method of interpretation would seem hard pressed to dispute it, and that approach was endorsed by the Supreme Court majority in Noel Canning. Thus it seems a bit incomplete, to say the least, that the Katyal/Conway New York Times op-ed, which flatly declares the Whitaker appointment "illegal," does not even mention the 1792 Act and subsequent practice.

I wonder how strong the practice is beyond the statutes themselves. That is, to what extent have past Presidents conferred the "acting" duties of principal offices upon persons not confirmed by the Senate to any position? I have not seen this discussed (Katyal and Conway don't even acknowledge that there might be some prior practice). As a start, Andrew Hyman helpfully supplied this link (to the trial of Andrew Johnson), in which (for reasons I haven't fully figured out) a list of past acting designations of department heads was entered into the record. Looking over these quickly, it looks like some of the nineteenth-century acting officers were people who had been confirmed by the Senate to other high positions, but others may well not have been. Many are not recorded as having titles (as the people with high offices are), so they may just have been private citizens. In any event, this seems like a good place to start looking.

FURTHER UPDATE (by Michael Ramsey): I picked one of the appointments in the above document at random:

On the 19th of August 1829, President Jackson appointed William B. Lewis Acting Secretary of War during the absence of the Secretary of War.

From this site it looks to me that William B. Lewis did not hold any Senate-confirmed office in 1829:

William Berkeley Lewis (1784-1866) of Tennessee was Andrew Jackson's friend and political advisor. He served as quartermaster under Jackson during the Creek War and War of 1812, and was a member of the "Kitchen Cabinet” in the Jackson administration, holding considerable influence until Jackson's second term. In 1830 Jackson appointed Lewis as Second Auditor of the Treasury, a position he lost in the Polk administration.

(Wikipedia also does not not mention any federal offices held by Mr. Lewis in 1829).